Chapple v. State

521 S.W.2d 280, 1975 Tex. Crim. App. LEXIS 896

• Court: Court of Criminal Appeals of Texas
• Decided: March 26, 1975
• Docket: 49604
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation. The appellant entered a plea of guilty to the offense of burglary with intent to commit theft. Punishment was assessed at eight years, probated,

The sole contention of appellant is that the burglary conviction is void because the information upon which he was convicted was not based upon a complaint.

In 1971, Article 1.141, Vernon’s Ann.C. C.P., was adopted. See Acts, 62 Leg. page 1148, chapter 260, Section 1. It provides:

“A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall he charged by information.” (Emphasis supplied)

King v. State, 473 S.W.2d 43 (Tex.Cr.App.1971), held that an accused could constitutionally waive an indictment and be prosecuted upon an information for a felony offense.

Before this statute was enacted, there had to be an indictment before one could be convicted for a felony offense. The statute is special and should control over a general statute. It provides that one who is entitled to have an indictment presented before being tried may waive that right and be charged by an information. The purpose of the statute is, in part, to provide the accused a speedier trial if he so desires. No complaint has ever been required before a grand jury could return an indictment charging a felony offense. The present statute provides for the waiver of the indictment so that an information may be filed by the prosecutor as the charging instrument.

In most cases this is done where a defendant wishes to plead guilty and there has been a plea bargain for a recommendation for punishment by the prosecutor. However, the waiver of the indictment may be utilized where a defendant thinks the evidence is insufficient or for some other reason he thinks he will be found not guilty.

Appellant relies upon Article 21.22 [415] [479] [467], V.A.C.C.P. It provides:

“No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The affidavit shall be filed with the information. It may be sworn to before the district or county attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths.”

This statute and its predecessors were adopted long before a defendant in a felony case could choose to be prosecuted upon an information. The requirement that a complaint be the basis of a prosecution upon an information was for misdemeanor cases.

The cases relied upon by appellant which hold that there must be a valid complaint to support an information are misdemeanor cases. Article V, Section 17, of the Constitution of Texas, Vernon’s Ann.St., provides for the jurisdiction of county courts. It provides that “prosecutions may be commenced in said court by, information filed by the county attorney, or by affidavit, as may be provided by law.” Procedural statutes enacted pursuant to the constitutional provision require that in misdemeanor cases a complaint must be filed before there can be a valid information. The Constitution does not so provide.

An information is not required on appeal in county court where the prosecution begins in a city or justice court. Either an information or a complaint is all that is constitutionally required for jurisdiction to be in a county court.

Article 1.14, V.A.C.C.P., provides:

“The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of trial by jury in a capital felony case.”

Article 1.141, supra, is a special statute and controls over Article 21.22, supra.

We hold that when an accused waives the right to be tried upon an indictment and elects to be tried upon an information, no complaint is required.

No error is shown.

The judgment is affirmed.